Streamlining the judicial process for planning appeals

In the 2013 Budget, the government committed to streamlining the legal process for dealing with challenges to planning and major infrastructure projects, either by judicial review or by statutory challenge, in order to reduce delays and speed up development, and therefore economic growth. In early September the Ministry of Justice published a consultation on the detail of this proposal. This briefing considers the proposals it contains and what may be their effect.

Overview

In November 2012 the Prime Minister announced the government’s intention to scale back the use of judicial reviews. He said that some judicial review applications are “time-wasting” and said that judicial review had become a “massive growth industry”, citing an increase from 4,500 applications in 2008 to 11,200 in 2011, of which only 1 in 6 had been granted.

In September 2013 the Ministry of Justice published a consultation on the measures proposed to deal with this perceived problem, seeking views on a small range of proposals. The consultation closes on 1 November.

Currently, planning decisions in London are generally made by boroughs, acting as local planning authorities (LPAs). In a small minority of cases, decisions are made by the Mayor or other LPAs, such as development corporations.

Appeals against these decisions are made to the Secretary of State for Communities and Local Government, and are dealt with on his behalf by the Planning Inspectorate (PINS), unless he decides to ‘call in’ the appeal for his own determination. Decisions made either by the Secretary of State or by PINS can only be challenged on a point of law within legal restrictions, and decisions made either by LPAs or the Secretary of State/PINS can only otherwise be challenged by judicial review.

The government has expressed concern that the judicial process is too frequently used by those opposed to a planning application to frustrate its progress, even where the grounds for judicial review may be very weak. In 2011, the Administrative Court received approximately 400 planning cases of which between 150 and 200 were applications for judicial review.

For these cases, the average time between making the application for review and having the preliminary hearing was around 100 days, and then a further 270 days until a full hearing. While there is a process to prioritise urgent cases, only 15 were ‘flagged up’ in this way in 2012. In addition to the length of time taken to hear judicial reviews, the government considers that, because reviews can be sought at different stages of the planning process, and be heard by different (often non-specialist) judges, the effect of uncertainty can also add as a disincentive to development.

To address these issues, in July this year a ‘Planning Fast-Track’ was established in the Administrative Court to identify planning-related challenges at an early stage and refer them to appropriate judges.

**Specialist Planning Courts & Judges**

However, the consultation proposes further measures to improve the speed and efficiency of the process, namely the establishment of a specialist Planning Chamber in the Upper Tribunal, to which planning judicial reviews and statutory challenges may be referred, and which would also have accompanying procedural rules setting out time limits for determinations. This chamber would be part of the existing ‘Lands Chamber’, which would have specialist planning judges sitting in it, and which would be renamed to reflect this wider scope of interest. In addition, the government will consider whether to introduce a ‘permission filter’ to restrict weaker legal challenges progressing further in future.

**Local Authorities challenging Infrastructure Projects**

Local authorities are currently able to bring judicial reviews for ‘nationally significant infrastructure projects’ as defined by the Planning Act 2008 and the Growth and Infrastructure Act 2013, although this ability is restricted compared to other ‘persons of general standing’. In order to reduce the scope for delay and uncertainty in this process, the government is also inviting views on whether local authorities should be restricted further in their ability to bring legal challenges to such projects. The consultation still intends for government bodies to be able to ‘influence and challenge relevant projects through routes other than judicial review’.

**Challenges to planning decisions**

Legal aid for statutory challenges (which are not the same as judicial reviews) is currently still available in relation to decisions under sections 288 and 289 of the Town and Country Planning Act 1990. The government is seeking views as to whether, where a decision has already been appealed to the Secretary of State, public funding should be available for this further challenge. The government’s view is that, as there has already been a publicly-funded planning process, during which people’s views will have been heard and taken into account, the government should not fund further challenge to the outcome of that process.

**Commentary**

The government has to balance the need to ensure that the planning process operates in a way that ensures that competing and sometimes conflicting views are appropriately accounted for but which also operates efficiently. To this end, London Councils supports the creation of a specialist planning court, with specialist judges, to hear planning cases. Planning is a specific area of law and ensuring that judges focus purely on planning cases will ensure a higher and, hopefully, more consistent quality of examination and judgement of cases.

However, at the same time, proposals to restrict access to the judicial review process are potentially more problematic. As mentioned above, when announcing the restrictions of judicial reviews last year, the Prime Minister said that 11,200 cases were dealt with in 2011. However, only 200 of these dealt with planning, less than two per cent of the total (the majority of cases related to asylum and immigration law). Equally, it is noted that the consultation paper says that: ‘[n]o challenges have been brought by local authorities to nationally significant infrastructure projects, of which 12 have completed the process, since the regime opened in March 2010.’ Given this, it would appear that the government is seeking to resolve a problem that perhaps does not exist, or at least not to the extent suggested. The government is rightly concerned to ensure that the planning system operates with a greater degree of timeliness and certainty, which is an objective that London Councils supports, and that local government does not undertake expensive legal challenges to nationally important projects. Yet the judicial review process does not seem to significantly block the former and local government has not done the latter. In fact, local government would appear to have taken a very cautious and prudent approach over the first three and a half years of the relevant regime’s operation. As a result, London Councils considers this proposal to be unnecessarily restrictive.

In addition, restricting the ability of individuals and organisations to bring publicly funded judicial reviews of government planning decisions risks removing the ability to challenge state decisions from those who cannot afford to pay for their own legal advice. While it is fair to point out that the planning process, and appeals to it, give the opportunity to voice concerns or objections and have these taken into account, that does not mean that any subsequent appeal should only, in effect, be left in the hands of a small minority. There is already a ‘filter’ to ensure that vexatious or unmeritorious appeals do not progress though the judicial process, and it may be that enhancing this filter may be a better way of ensuring that only those judicial reviews with a reasonable case are heard and publicly-funded. London Councils remains to be convinced that the government’s proposals in this area are an appropriate approach to ensuring a better planning system.

Author: Dominic Curran, Principal Project and Policy Officer (T: 020 7934 9508) Click here to send a comment or query to the author

Links: Judicial Review - government website

This member briefing has been circulated to: Portfolio holders and those members who requested policy briefings in the following categories: Localism, Devolution and Democracy; Planning and Housing